Dem
51
GOP
49
Yesterday, we had a long item on the Supreme Court's mess of a decision in the ballot access case. There are a couple of points in that piece worth returning to.
First, in our item (and in others), we struggled with whether to call the opinion written by the three liberals, and the one written by Amy Coney Barrett, concurrences or dissents. In the actual decision, they are referred to as concurrences, but they are framed and written in a manner much more consistent with dissents. We were not the only commenters who had issues with this.
It turns out that our lack of clarity was justified. Yesterday, someone discovered that the Supremes forgot to scrub the metadata from the decision, which means it's possible to review the revision history. This sloppiness, plus the fact that the decision was announced at a weird time, and that no justices were present for the announcement, all speaks to a hasty and haphazard process. Did the justices not realize that Colorado votes on Super Tuesday?
What the metadata reveals, meanwhile, is that the "concurrence" written by the three liberals was originally labeled as a dissent, and was signed by just one of the lefties, namely Sonia Sotomayor. Pretty near the end of the process, the other two liberals signed on and made some changes, while Amy Coney Barrett added her "concurrence." There are many explanations for this course of events, but the simplest one (remember Occam's Razor) is that the three non-Sotomayor women were holding out in hopes of getting a fifth vote for a limited finding. When they did not get it, they presumably went all-in on opposing the decision. Meanwhile, in the name of faux-unity, Chief Justice John Roberts likely asked for the term "concurrence" to be used rather than "dissent."
Second, we also pointed out that because the decision is badly written, it leaves open the possibility that the moment control of Congress ends up in the hands of one party, and the White House in another, Congress could well eject the president and vice president with a simple majority vote by declaring them to be insurrectionists. This could theoretically even happen mid-term.
We had quite a few readers write in to push back against that, noting that laws have to be signed by the president, and that no president is going to sign such a law. It is true that no president would sign their own political death warrant like this. However, not every bill passed by Congress requires presidential approval. If Congress were to try to establish an ongoing framework for what constitutes insurrection, then yes, that would have to be signed into law by the president. On the other hand, if Congress wanted to decree that [Person X] and/or [Person Y] were guilty of insurrection, there is a long history of Congress offering up opinions like that in the form of resolutions (for example, censure resolutions). These do not require a presidential signature. And if Congress were to try it, they would be on pretty strong ground arguing that such a finding DOES NOT require a presidential signature, since no man may be his own judge.
We are not saying that such an action would hold up in court, but it could, given the new SCOTUS ruling. And, as you might have noticed, there is a significant faction within one of the two major political parties for whom "it might hold up in court" is more than enough. (Z)